Opinion
G030338.
11-19-2003
DOROTHY MACIAS AGUILERA, Plaintiff and Respondent, v. DYNAMIC INVESTMENTS, INC., Defendant and Appellant.
Anton Plese for Defendant and Appellant. Fredman Lieberman, Marc A. Lieberman and Kari A. Keidser for Plaintiff and Respondent.
Dynamic Investments, Inc. (defendant) appeals from a judgment in favor of Dorothy Macias Aguilera (plaintiff) following trial of an action arising out of a home loan/investment deal gone bad. Finding defendant was negligent and in breach of two agreements pertaining to the transaction — an escrow agreement and an investment agreement, the jury awarded plaintiff $ 210,000 in damages.
Defendant does not challenge the sufficiency of the evidence to support the judgment. Moreover, almost none of the evidentiary record has any bearing on the issues before us, thus we need not summarize the facts in detail. Suffice to say, plaintiff, in her late 70s, living on a social security income of $600 per month, with a seventh grade education, poor health, and on heavy pain medication, was persuaded to take out a loan in excess of $90,000, secured by a trust deed on the home she had owned and lived in for nearly 40 years. Plaintiff received only $25,000 of the proceeds, having been told the remainder would be invested for her at a rate of return sufficient to make the mortgage payments she could not otherwise afford. Defendant wore three hats in the transaction, for which it collected fees: loan broker, escrow holder/disburser of loan proceeds pursuant to instructions forged by its own agent, and investment counselor. Defendants agent absconded with more than $65,000 of the loan funds, a feat facilitated by defendants negligence and breach of the escrow agreement. Plaintiff filed this action when, unable to make her payments, she was faced with foreclosure on her home.
DISCUSSION
Statute of Limitations Defense
Defendant raises two contentions on appeal. The first is that plaintiffs complaint was untimely under the express provision of an escrow agreement shortening the statutory limitation period to one year. In its answer, defendant failed to raise the time-bar as an affirmative defense. Defendant mentioned it for the first time in an oral motion for directed verdict, explaining the delay by arguing plaintiff had never alleged the escrow agreement as a basis for recovery. Review of the complaint does not support that argument, and a fair portion of the testimony at trial dealt with defendants mishandling of the escrow. Defendant could not have been taken by surprise. Moreover, defendant never sought to amend its answer to allege the contractual one-year limitation period.
In the absence of exceptions not applicable here, "the statute of limitations is a personal privilege which `. . . must be affirmatively invoked in the lower court by appropriate pleading . . . or else it `is waived." (Mysel v. Gross (1977) 70 Cal.App.3d Supp. 10, 15.) There are two ways of pleading the defense: One is to allege the cause of action is barred by a specific code section; the other is to state underlying facts, (in this instance, the contractual provision) demonstrating the action is barred and indicating the lateness establishes the bar. (Ibid.) Defendant did neither, waiving the defense as a matter of law. The court properly denied the motion for directed verdict.
The court denied defendants motion for directed verdict without comment, thus we do not know its reasoning. However, we do not look behind the ruling to review the route taken by the trial court: We affirm a decision if it is correct in the law on any ground. (Phillip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173.)
Jury Instruction
Defendant takes issue with a modified jury instruction on agency and imputed liability, contending it was misleading, confusing, and prejudicial in that the court limited its applicability exclusively to the negligence cause of action. Defendant expressly waived the objection when defense counsel advised the court he agreed the instruction applied solely to negligence; moreover, defendant did not request additional or qualifying instructions. (See, e.g., Telles Transport, Inc. v. Workers Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167 ["[A] party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error"].)
The instruction stated: "The defendant Dynamic Investment, Inc. has been sued as a principal and Daniel Ortiz is alleged as his [sic] agent. [¶] If you determine that Daniel Ortiz was the agent of defendant Dynamic Investment, Inc. and was acting within the scope of employment or authority at the time of the events out of which the incident occurred, and if you find that Daniel Ortiz is liable, then both Ortiz and Dynamic are liable. But if you find that Daniel Ortiz is not liable, then Dynamic is not liable. [¶] However, if you determine that Daniel Ortiz is liable but was not then the agent of defendant Dynamic Investment, Inc. or was not acting within the scope of employment or authority at such time, then you must find that the defendant Dynamic Investment, Inc. is not liable. [¶] This instruction applies only to the negligence cause of action."
Even assuming the court should have applied that particular agency instruction to the breach of contract claims as well, (there were additional instructions given on the issue of agency), defendant fails to carry its burden of demonstrating how the asserted error could have confused or misled the jury to defendants detriment, i.e., resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573-574.) Given the evidence of the agents misconduct, it seems to us defendant only could have benefited from the courts limitation on the applicability of the subject instruction.
On defendants cross-complaint for indemnity from its agent, Daniel Ortiz, the jury found Ortiz bore the lions share — 60 percent — of defendants liability to plaintiff.
DISPOSITION
The judgment is affirmed. Plaintiff shall recover her costs on appeal.
WE CONCUR, SILLS, P. J., ARONSON, J.